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1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) are applicable to the preparation of offers and the conclusion and processing of all deliveries and services of AQIPTECH AG, hereinafter referred to as “AQIPTECH”, and constitute an integral part of AQIPTECH’s offers, order confirmations and contracts.
1.2 Should there be any deviations between the contractual provisions and these terms and conditions, the contractual provisions shall have precedence.
1.3 Other general standards and terms and conditions shall only be applicable if this has been explicitly agreed in writing by the parties. General terms and conditions of business, purchasing and other contractual terms and conditions of the Purchaser shall only be applicable if they have been explicitly accepted by AQIPTECH in writing. Any waiver of these GTC of AQIPTECH by other general terms and conditions is excluded in all cases. These GTC shall take precedence in the event of any deviations between these GTC and other applicable general terms and conditions.
1.4 If any provision of these General Terms and Conditions is found to be wholly or partially invalid, the validity of the remaining provisions shall not be affected thereby. The contracting parties shall replace this provision with a new provision coming as close as possible to the meaning and purpose of the original provision.
2. Conclusion of contract
2.1 An order shall only be concluded if AQIPTECH’s offer is accepted by the Purchaser in writing. The written form requirement shall also be applicable to additional or follow-up orders or to amendments to a concluded contract.
2.2 Except where otherwise specified in the offer, AQIPTECH offers shall be valid for thirty days from the date of issue.
2.3 If the Purchaser deviates from AQIPTECH’s offer in its order confirmation, the Purchaser shall be obliged to explicitly inform AQIPTECH of the deviations in writing in advance and to agree them with AQIPTECH. In the absence of AQIPTECH’s explicit written consent to the deviations, the contract shall be regarded as having been concluded in accordance with AQIPTECH’s original offer.
3. Software
3.1 The Purchaser shall receive the non-transferable, non-exclusive right that cannot be sub-licensed to use the software, data, documentation and such like provided by AQIPTECH for an indefinite period, exclusively for use in connection with the delivery itself, once all outstanding claims have been settled in full. In particular, the Purchaser may save and load the software permanently or temporarily, display it and run it (“contractual use”). The software is not to be used on multiple systems or passed on or made accessible to third parties.
3.2 The source code of the software does not form part of the software provided. The Purchaser shall have no rights to these.
3.3 The Purchaser shall not be afforded the right to process the goods except where changes are permitted under mandatory statutory provisions. The Purchaser hereby undertakes to inform AQIPTECH immediately of any changes.
3.4 All rights to the software, e.g. copyrights, shall remain with AQIPTECH or its licensors. This is also applicable if the Purchaser or third parties make subsequent modifications. AQIPTECH shall also reserve the right to encrypt individual software modules using password protection.
3.5 The Purchaser may only make copies of the software and the user documentation for security and archiving purposes subject to the explicit written consent of AQIPTECH. Further copies or copies for other purposes shall be prohibited and shall in any case require the written consent of AQIPTECH. All modifications and copies shall be subject to the same protective measures as the original. Copyright and other proprietary notices must not be removed nor altered. They must also be transferred to each backup copy.
3.6 The Purchaser shall be liable without limitation for any damages resulting from misuse or use of the software in breach of the contract, particularly if the software and/or documentation is passed on to third parties.
3.7 In terms of third-party applications, the terms and conditions for granting rights of use of the respective manufacturer of the third-party applications apply.
3.8 AQIPTECH shall install, configure and commission the software in the Purchaser’s system. The parties shall perform an acceptance test of the installed software upon notification by AQIPTECH and record the result in writing.
3.9 The Purchaser buys the software in the version supplied; the system is not kept up to date. The Purchaser has the option of concluding a maintenance and support contract with AQIPTECH. If the Purchaser does not conclude a maintenance and support contract, no updates will be provided.
4. Material
4.1 Our material prices are to be understood as of the date of the offer. In the event that the market price is increased by our suppliers by more than 3% compared to the date of the offer, we reserve the right to charge the additional cost of the materials. AQIPTECH substantiates this increase based on the suppliers’ list prices. No liability can be accepted on the part of AQIPTECH for delays caused by global difficulties in the supply of materials.
5. Obligations of the Purchaser
5.1 The Purchaser is aware of the essential functional features of the software and assumes the risk that it corresponds to their wishes and requirements. The Purchaser shall be responsible for setting up a functional hardware and software environment with sufficient dimensions, also taking into account the additional load caused by the software. The Purchaser must observe the instructions issued by AQIPTECH for the installation and operation of the software, particularly with regard to the system requirements and the software installation instructions.
5.2 The Purchaser shall undertake appropriate precautionary measures in the event that the software does not function properly (e.g. by means of regular data backups, troubleshooting, regular checks of the data processing results). The user must make a suitable backup of their data prior to installing the software or new programme versions.
5.3 Failure on the part of the Purchaser to fulfil an obligation imposed on them under this clause and AQIPTECH consequently being unable to provide the services owed under this contract despite a warning being issued means that AQIPTECH may withdraw from this contract, whereby the Purchaser must indemnify and hold AQIPTECH harmless for all damages resulting from the premature termination of this contract.
6. Prices
6.1 If nothing else is agreed otherwise, the prices are understood to be in Swiss francs (CHF) without VAT, fees, charges, customs duties, transport, packaging or insurance.
6.2 The prices are calculated based on the material prices, wages and other manufacturing costs applicable at the time the offer is made. In the event that the conditions underlying the pricing, in particular currency parities, state / official taxes, market conditions, levies, fees, customs duties, etc. change between the time the offer is made and the agreed delivery date, AQIPTECH shall have the right to adjust prices and conditions to the changed conditions.
6.3 AQIPTECH reserves the right to check the creditworthiness of the Purchaser at any time and, should the assessment be negative, to cancel the order without prior notice and to demand additional securities, guarantees or payment in advance in respect of future deliveries.
6.4 Should additional expenses or supplementary services arise during order processing as a result of changes to the services, they shall be invoiced based on the main order excluding all discounts.
7. Payment terms
7.1 Invoices issued by AQIPTECH are due for payment within 30 days net from the invoice date. Should the Purchaser fail to meet the corresponding deadlines, they will be required to pay default interest of 5% p.a. from the due date without a reminder (expiry date business).
7.2 The decisive factor for the timeliness of payment is exclusively the irrevocable receipt of the invoice amount in AQIPTECH’s account.
7.3 The retention of partial amounts, the reduction in price or offsetting against counterclaims of the Purchaser are inadmissible and are hereby excluded.
8. Invoicing
8.1 Services as well as material deliveries are invoiced by means of partial invoices. Invoicing is based on the work progress, in relation to the project phase plan or in accordance with the payment instalments agreed.
8.2 Cost plus services, including the materials required, are invoiced on a time and material basis in accordance with the fees defined for the service provided.
9. Deadlines & delivery periods
9.1 Deadlines shall only be binding if they have been explicitly confirmed in writing by AQIPTECH.
9.2 The deadlines and/or delivery periods shall be extended accordingly if:
9.3 AQIPTECH fails to receive information from the Purchaser that is required for the provision of the deliveries and services in good time, the information is incorrect or incomplete or if this information is subsequently changed by the Purchaser and this results in a delay;
9.4 Difficulties beyond the control of AQIPTECH or which AQIPTECH cannot overcome despite exercising the usual care, including in particular significant operational disruptions, strikes, epidemics, accidents, labour disputes, late or faulty delivery of semi-finished or finished products, official measures or omissions, natural disasters or events that are to be regarded as force majeure occur;
9.5 The Purchaser or third parties are in default of their contractual obligations, especially if the technical and other details to be provided by the Purchaser are not available or the terms of payment have not been complied with.
9.6 Should there be a delay in delivery for which it can be proven that AQIPTECH is responsible, the Purchaser may, following notification of the delay by AQIPTECH, declare within a period of 14 calendar days whether it still insists on delivery or whether it wishes to withdraw from the contract.
10. Shipping & transport conditions
10.1 AQIPTECH remains free to choose the means of transport and the transport company. In the absence of any written agreement to the contrary, transport costs are not included in the product price and will be invoiced to the Purchaser separately. In this respect, FCA – Free Carrier of INCOTERMS® 2020 is applicable.
10.2 The packaging and means of transport used will be those deemed appropriate by AQIPTECH. Additional costs incurred due to special requests by the Purchaser, e.g. express delivery, shall be borne by the Purchaser.
10.3 Any complaints arising from transport damage, delays or loss must be made immediately after their discovery by the Purchaser to the Supplier (post office or forwarding agent) in writing and are the sole responsibility of the Purchaser. General complaints must be made within 8 days following receipt of the consignment.
11. Transfer of benefit and risk
11.1 If the Purchaser collects the goods from AQIPTECH or if the goods are dispatched by means of a transport company or a third party on behalf of the Purchaser, the benefit and risk shall pass to the Purchaser as soon as the goods are loaded onto the means of transport (FCA – Free Carrier of INCOTERMS® 2020).
11.2 In the exceptional event that transport and unloading is performed by AQIPTECH personnel and equipment, the benefit and risk shall pass to the Purchaser as soon as the goods are placed on the ground. Where transport is performed by AQIPTECH, yet unloading is performed by the personnel or equipment of the Purchaser, the benefit and risk shall pass to the Purchaser upon arrival of the transport vehicle at the place of delivery.
12. Return
12.1 It is at AQIPTECH’s discretion to take back undamaged goods in their original packaging subject to prior written agreement and against a credit note.
12.2 Credit notes shall not be disbursed in the first instance, but only offset against other claims of AQIPTECH against the Purchaser. Any credit notes shall be issued after deduction of a handling fee of 1% of the value of the goods, subject to a minimum of CHF 100. Returns with a goods value of less than CHF 100 will not be accepted in principle.
12.3 Returns without prior agreement will not be considered. The Purchaser shall bear the costs for the return shipment and any transport insurance. In this respect, DDP – Delivery Duty Paid of INCOTERMS® 2020 is applicable. AQIPTECH is entitled to make a deduction from the credit note in the anticipated amount of the transport costs for the dispatch as an advance payment by the Purchaser.
13. Inspection and acceptance
13.1 If the corresponding contractual prerequisites (e.g. fulfilment of commissioning) are in place, then AQIPTECH shall request the Purchaser to mutually conduct the inspection and acceptance within a reasonable period of time. A protocol to be signed by the Purchaser and AQIPTECH shall be drawn up for the acceptance. This states that acceptance has been granted. Any deficiencies discovered during the inspection must be recorded in the protocol.
13.2 In the absence of a request for acceptance by AQIPTECH, the Purchaser is required to inspect the deliveries and services within 30 days of their delivery and to immediately notify AQIPTECH in writing of any defects identified during the inspection. Acceptance is deemed to have been granted at the time of inspection.
14. Warranty
14.1 AQIPTECH grants a material guarantee of 24 months from the date of delivery for all new products. Systems commissioned by AQIPTECH also benefit from a functional guarantee of 12 months from acceptance. The warranty is restricted exclusively to the deliveries and services rendered by AQIPTECH, but not to the system as a whole.
14.2 The application documentation valid at the time the contract is concluded shall be authoritative for the nature of the software provided by AQIPTECH. AQIPTECH guarantees that the software shall fulfil the functions described in the user documentation when used in accordance with the contract during the warranty period. If this is not the case, the software is defective and subject to warranty. However, the Purchaser recognises that malfunctions of the software cannot be completely ruled out even with the utmost care and that the uninterrupted functionality of the software cannot be guaranteed.
14.3 The technical data, specifications and performance descriptions given in the user documentation or other documents from AQIPTECH do not constitute assurances except where they are explicitly designated as assurances by AQIPTECH in writing.
14.4 Defects and malfunctions for which AQIPTECH is not responsible shall be excluded from the warranty, e.g. those attributable to materials provided by the Purchaser or prescribed construction and design, natural wear and tear, insufficient maintenance, failure to observe the user documentation, improper or excessive use, improper application, unsuitable operating materials, manipulation by the Purchaser or third parties, extreme environmental influences and such like.
14.5 When it comes to electrical installations, third-party companies may be involved without this limiting the guarantee, provided that the work is performed by authorised installation companies.
14.6 If the function of a system supplied and commissioned by AQIPTECH is impaired during the warranty period, troubleshooting (during normal working hours) shall be carried out at the request of the Purchaser.
15. Defect rectification
15.1 The Purchaser is obliged to notify AQIPTECH of a defect within the warranty period within 10 calendar days following its discovery in writing and with sufficient documentation.
15.2 Defects in the software reported in line with the contract during the warranty period shall be rectified solely by repair or replacement, at AQIPTECH’s discretion. The bypassing or suppression of a defect is also regarded as a permissible rectification. Should the subsequent fulfilment take the form of a replacement delivery, the Purchaser shall be obliged to return the defective product initially delivered to AQIPTECH within 30 days. Copies of the software may not be retained.
15.3 Any further warranty claims on the part of the Purchaser are explicitly excluded.
16. Liability
16.1 AQIPTECH shall only be liable for damage resulting from wilful intent or gross negligence. In any event, AQIPTECH shall only be liable in the amount of the actual, foreseeable and direct damage, limited to a maximum of half of the respective order amount and to an absolute maximum of CHF 100,000. Any liability for slight negligence shall be excluded in full.
16.2 Liability of any kind for damages resulting from force majeure, pandemics, measures of state violence and/or other events outside the control of AQIPTECH as well as for consequential damages is excluded.
16.3 Any liability for indirect damage shall be excluded. Neither AQIPTECH nor its suppliers shall be liable for damages of any kind (including business interruption, loss of data or business information or other financial losses such as loss of profit) incurred as a result of using a programme, system or service from AQIPTECH or the inability to use such products, even if AQIPTECH has been made aware of the possibility of such damage.
17. Legal warranty
17.1 AQIPTECH shall release the Purchaser from any liability for the breach of third-party copyrights provided that and to the extent that the breach of such third-party rights has been solely brought about by the contractual use of the software.
17.2 As a defence against third-party claims, AQIPTECH may, at its discretion, grant the Purchaser the right to continue using the software or replace or modify the software without any deterioration in the functions described in the user documentation. If AQIPTECH is not able to implement any of these measures, AQIPTECH shall be authorised to withdraw from this contract. The right of the Purchaser to use the software and the user documentation shall end with the declaration of cancellation of the contract by AQIPTECH. The offer price will be refunded in full to the Purchaser in the event of cancellation within the first 12 months following delivery and 50% within 13 to 24 months following delivery, up to a maximum of CHF 100,000 in both cases.
17.3 The Purchaser shall inform AQIPTECH immediately in writing of any third-party claims asserted and authorise them to conduct the defence, including the conclusion of a settlement, at their own expense. The Purchaser shall support AQIPTECH to an appropriate and reasonable extent.
17.4 Any further warranty on the part of AQIPTECH towards the Purchaser in the event of actual or alleged claims by third parties is excluded.
18. Termination of contract by AQIPTECH
18.1 The contractual relationship may be terminated by AQIPTECH at any time for good cause. An important reason is deemed to be any circumstance that makes the continuation of the contractual relationship seem unreasonable for AQIPTECH. The right to cancellation without giving notice can only be exercised within two months of AQIPTECH becoming aware of the facts of the cancellation.
18.2 By way of a non-exhaustive list, important reasons include:
19. Intellectual property rights
19.1 The Purchaser shall not acquire any claims to the use of intellectual property rights of AQIPTECH beyond the usage rights required for the intended and contractual use of the software.
19.2 The Purchaser shall also not acquire any intellectual property and rights, such as copyrights, patent rights, design rights and labelling rights, from AQIPTECH.
19.3 Any liability on the part of AQIPTECH towards the Purchaser for infringement of third-party property rights shall be excluded if the Purchaser fails to notify AQIPTECH immediately, takes legal action without the prior written consent of AQIPTECH, unilaterally intervenes or otherwise uses the goods for purposes other than those for which they are intended.
20. Retention of title
20.1 The subject matter of the contract shall remain the property of AQIPTECH until all claims against AQIPTECH have been fulfilled. The Purchaser authorises AQIPTECH to undertake any necessary registrations or reservations of the retention of title in public registers at its own expense.
20.2 The Purchaser is obliged to undertake all measures necessary to protect the property of AQIPTECH.
20.3 The Purchaser is prohibited from reselling, pledging or transferring ownership by way of security for the duration of the retention of title. The Purchaser must immediately inform AQIPTECH in the event of seizure, confiscation or other dispositions or interventions by third parties.
20.4 The Purchaser is obliged to insure the goods delivered by AQIPTECH against the risks of theft, fire, damage and other risks for the benefit of AQIPTECH until full payment has been made.
21. Place of jurisdiction and applicable law
21.1 The parties shall strive to settle any disputes that may arise during the fulfilment of the contract and the interpretation of the contract and these terms and conditions in an amicable manner. The legal settlement should not be made more difficult, however. The exclusive place of jurisdiction is Liestal.
21.2 Substantive Swiss law shall apply to the contract and these terms and conditions, with explicit exclusion of the rules governing conflicts of international private law.
As of: February 2024